By: Amie Schoeppel Wilcox; Mark K. Cameron; and A.J. Teotia
Understanding, navigating, and complying with immigration laws in the United States is a challenging job. Today, International Medical Graduates comprise one quarter of the U.S. physician workforce. Hospitals and physician groups across Arkansas, and particularly in rural areas where recruitment and retention can be even more difficult, should consider how their workforce may benefit from including International Medical Graduates and other international healthcare providers. This summary serves as an overview of the healthcare immigration framework and opportunities that may be worth considering for your practice.
Visas can generally be divided into non-immigrant visas and immigrant visas. Non-immigrant visas include temporary stay and work visas, while immigrant visas are a direct path to permanent residency and citizenship. Some non-immigrant visas, like the H-1B, are a dual-intent visa – which means that beneficiaries can also pursue a long-term immigrant visa while remaining in valid H-1B status. While there are some advantages healthcare professionals may have in the long-term visa analysis, this article primarily focuses on non-immigrant visas.
H-1B Specialty Occupations
The H-1B visa for specialty occupations is one of the most popular visas for employers. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. H-1B visas are great for physicians, pharmacists, physicians assistants, nurse practitioners, physical therapists, data analysts, laboratory directors – the list goes on. This category is employer-specific and is generally available for two three-year terms. Because of the short time frame and dual-intent status, the H-1B is a popular “bridge” to permanent residency (“green card”) and long term employment. The primary challenge to H-1B eligibility is the “cap” system. Currently, there is a congressionally mandated cap of 65,000 H-1B visas, and an additional 20,000 H-1B visas available to beneficiaries with advanced degrees. This creates the need for a “lottery” system each year to determine who may be eligible to file a petition for an H-1B visa. Because the number of applicants far exceeds the availability, there are a few valuable cap-exempt pathways for healthcare providers that healthcare providers will want to take advantage of.
Organizations that are exempt from the cap are mostly limited to institutions of higher education, private research organizations, and government research organizations. However, there is also a cap exemption available to non-profit entities affiliated with an institution of higher learning. This is an extremely valuable tool for healthcare providers. Chances are, if you are a non-profit hospital, you participate in clinical education with an institute of higher education. If so, and this relationship is active and documented by a signed affiliation agreement, you can petition for an H-1B worker as a cap-exempt entity. In the case of for-profit entities, there is a path to cap-exemption where the H-1B worker will be spending the majority of their time at an institution of higher education and their work furthers the educational mission and purpose of the institution. There is also a cap exemption available in cases where the beneficiary is to spend any of their time at cap-exempt institution and the cap-subject employer is willing to petition as a dual employer (for example, where a healthcare worker is doing clinical education at a local community college). The bottom line here is that while the cap is a challenge, there are certainly options to overcome it.
F-1 Students
Many young physicians or other healthcare workers will be in F-1 status upon first interaction with employers while they are still in or have recently completed their education. While beneficiaries of an F-1 cannot generally be employed off-campus, they may be placed to work at a healthcare employer for their Curricular Practical Training (CPT) or Occupational Practical Training (OPT). These students may be paid in these roles. Students are generally eligible for one year of post-completion OPT, and if the beneficiary is in a STEM field, they may be eligible for up to another of employment. The F-1 visa is a popular entry point for an employment relationship.
J-1 Exchange Visitors and Waivers
The other most popular entry point for an employment relationship is the J-1, which is most often utilized by International Medical Graduates. The Exchange Visitor J-1 category is for individuals approved to participate in work and study-based exchange visitor programs. International Medical Graduates may apply for J-1 status from inside or outside the United States and remain eligible while completing their residency or education programs. Notably, the J-1 visa does have a two-year home-residency requirement for beneficiaries before they may become eligible for another status, such as H-1B. However, there are several different waiver programs available which may eliminate this requirement for the physician. Where a physician is willing to practice in a medically underserved area and meet other program eligibility requirements, it is very likely the physician could transition to an H-1B visa to continue to practice in the United States. These waivers are particularly important in Arkansas, where the entire state is designated as a medically underserved area.
TN Professionals from Mexico and Canada
The TN nonimmigrant classification was established by the North American Free Trade Agreement (NAFTA), now called the United States-Mexico-Canada Agreement (USMCA). The TN classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities for certain professions directly outlined therein. Beneficiaries are eligible for an initial term of three years, which can continue to be extended so long as the individual is eligible. Some of these professions that may be an asset to healthcare providers are dentists, dietitians, medical laboratory technologists, nutritionists, occupational therapists, pharmacists, physical therapists, psychologists, and registered nurses. Applicants from Canada can generally apply at any port of entry, while applicants from Mexico will need to make a consular appointment for processing.
Immigration Law Our Immigration Group has experience advising and supporting clients with various visa types. We provide guidance on family-based immigration options and assist clients with the preparation and submission of labor certifications, nonimmigrant visa petitions, and applications for permanent residency. Additionally, we address any issues that may arise with the hiring of foreign workers. Our services include but are not limited to Labor certifications, work visas for specialty occupation workers, Visas for foreign investors, and Professional worker visas.
Contact our Immigration Law Group to discuss if we may be able to assist you in your recruitment and retention of qualified healthcare workers.